CIVIL COMMITTAL PROCEEDINGS AND EARLY RELEASE FROM PRISON: CORONAVIRUS A RELEVANT FACTOR

In Chelsea Football Club Ltd v Nichols & Anor [2020] EWHC 827 (QB) Mr Justice Chamberlain held that the applicant’s health condition, current prison conditions and coronavirus were a relevant factor in the early discharge of someone imprisoned for contempt of court.

” … the state’s interest in upholding the rule of law is outweighed by another important interest – that of removing a prisoner at increased risk of suffering serious health complications should he contract Covid-19 from the prison estate.”

THE CASE

The applicant had a history of acting as a ticket tout. In February 2020 he was committed to prison for 21 weeks for breach of a court order preventing him dealing in Chelsea Football Club tickets. He was in prison and made an application for early release.

THE JUDGMENT ON EARLY RELEASE

Submissions on behalf of Mr Nichols

Mr Tear’s application before me is based squarely on new factors which he says have arisen between 25 February 2020, when the sentence was imposed, and today. The application is based upon the impact of the Covid-19 epidemic on prisoners in general and on Mr Nichols in particular. There are a number of strands to this submission, which overlap.

First, Mr Tear relies on Mr Nichols’ medical conditions.These were considered by Ms Collins-Rice when she imposed the sentence from which discharge is now sought, but they did not then have the significance they now have. Mr Nichols is a 53-year old man, who is diabetic and also has a cardiac condition. Although there is no medical report before me, it is well known that both these conditions mean that the health risks to him if he were to contract Covid-19 are elevated. This is reflected in current NHS guidance and in Schedule 1 to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350), which includes those with chronic heart disease or diabetes in the category of “vulnerable persons”.

Second, there is the effect of Covid-19 on prison visiting in general and in HMP Wormwood Scrubs in particular, where Mr Nichols is currently being held. It was announced on 24 March 2020 that prison visits were temporarily cancelled to reduce the spread of the virus. As I indicated on 30 March 2020, the extent of any effect on an individual prisoner of the cancellation of visits is a matter for evidence. There is now evidence before me from Ms Nicole Mileham, Mr Nichols’ wife. In a statement dated 2 April 2020, she indicates that she went with her son Jack and Mr Nichols’ daughter Natasha went to see Mr Nichols at HMP Wanstead, where they had been told he was being held. It turned out that he was not there. By the time he had been located, they were able to see him only once (on 17 March 2020). Because of the rule that only 3 visitors are allowed, his teenage daughters were unable to see him. Ms Mileham says that they are devastated by this. Mr Nichols is able to speak to Ms Mileham and the rest of the family on the telephone every couple of days, for about 10 minutes at a time.

The third matter relied upon relates to the conditions in which Mr Nichols is being held in HMP Wormwood Scrubs. When he arrived, he shared a cell with one remand prisoner. However, from around the week commencing 9 March 2020, he was moved to a dormitory with five others who she describes as “mainly elderly individuals”. Ms Mileham says that because of Covid-19 all association in the prison has now been stopped and the prison went into what she describes as “lockdown”, which means that prisoners may only leave their cells for medication or to work.

Fourth, Mr Tear relies on the effect that Mr Nichols’ imprisonment is having on the rest of the family. Financial information has been submitted which shows that the finances are in a parlous state, a matter which is causing stress to Mr Nichols.

Fifth, since Mr Tear submitted his skeleton argument on Friday 3 April 2020, the Ministry of Justice has announced that, in order to relieve pressure on the NHS which is likely to be caused by any outbreaks of Covid-19 in prisons, the intention is to implement a phased release early of “low risk” prisoners who have served at least half their custodial term and are within 2 months of the end of their sentences. Mr Nichols has served nearly half of the custodial term he would be required to serve and on any view poses a “low risk”.

Discussion

(i) Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?

Were it not for the effects of the Covid-19 pandemic on prisoners in general and on Mr Nichols in particular, it would be impossible to say that Mr Nichols had suffered punishment proportionate to his contempt. On 25 February 2020, Ms Collins-Rice decided that the punishment proportionate to the contempt was 21 weeks’ imprisonment. The Court of Appeal dismissed Mr Nichols’ appeal. Mr Nichols’ expression of remorse was before the deputy judge when she passed sentence and immediately afterwards. Insofar as it has been repeated before me, the repetition carries very little weight. However, it is also right to note that one of the most serious effects of imprisonment on a family man such as Mr Nichols is the dislocation from his wife and children. In ordinary circumstances this is ameliorated to some extent by the ability of family members to visit. The fact that there has been only one family visit since he was imprisoned, and the practical certainty that there will be no more, do in my judgment make the conditions in which Mr Nichols has been and is now detained significantly more onerous than Ms Collins-Rice could have anticipated when she imposed the sentence on 25 February 2020. The same is true of the fact that prisons are now in “lockdown”. These factors would not on their own justify Mr Nichols’ discharge at this stage in his sentence, but they nonetheless go into the “melting pot”.

(ii) Would the interest of the state in upholding the rule of law be significantly prejudiced by early discharge?

Any early discharge is capable in principle of prejudicing the state’s interest in upholding the rule of law. However, the announcement of the conditional release of convicted prisoners who have served at least half of their sentence and have less than 2 months to serve reflects a balancing of the state’s interest in upholding the rule of law, on the one hand, against other vital interests, on the other. These other vital state interests include in particular the public interest in protecting the NHS from the strain likely to be caused if there are outbreaks of Covid-19 in prisons. The MOJ’s announcement reflects the impact that unnecessary strains on the already challenged NHS are likely to have on the wider community. Mr Nichols has already served some 5 weeks of his sentence when in the ordinary course he would serve 10½ weeks. In essence, he has served half of the custodial term he would otherwise have served. He has less than 2 months to serve, so would fall within the criteria announced by the MOJ for early release if he were a convicted prisoner at low risk of reoffending.

It will not always be possible to assess the risk posed by a contemnor in the same way as the risk posed by a convicted offender. However, given the circumstances of this case, I cannot think that it would be right to treat Mr Nichols any differently from the prisoners now being considered for early release.

Nothing I say here should be taken as suggesting that it will be appropriate to release all contemnors simply because they have served half their sentences and have less than 2 months to serve. Much will depend on the facts of their individual cases. In particular, different considerations may apply to those whose sentences had a coercive as well as a punitive element. Mr Nichols’s sentence was, however, entirely punitive in purpose. The breach which it punished was of a prohibitory injunction. In those circumstances, it would not be fair for him to be treated more harshly than a convicted prisoner serving a custodial sentence of similar duration.

(iii) How genuine is the contemnor’s expression of contrition? (iv) Has he done all that he reasonably can to demonstrate to resolve and ability not to commit a further breach if discharged early? (v) In particular has he done all that we reasonably can (bearing in mind the difficulties of his doing so well in prison) in order to construct for himself proposed living and other practical arrangements in the event of early discharge in such a way as to minimise the risk of his committing a further breach? (vi) Does he make any specific proposal to augment the protection against any further breach of those who the order which he breached was designed to protect?

As I have said, I would have given very little weight to Mr Nichols’s repeated expressions of contrition. Mr Nichols made no arrangements of which I am aware to minimise the risk of his committing further offences. It is relevant, however, that – because of the current emergency – there are currently no sporting fixtures and therefore no opportunity for Mr Nichols to continue to breach the orders that apply to him. This means that if Mr Nichols were to remain in prison until 11 May 2020 (as he would if not discharged), neither the Claimant nor the public would thereby gain any element of protection by the mere fact of his continued incarceration. Again, this would not be determinative on its own, but it is a relevant factor.

(vii) What is the length of time which he has served in prison, including its relation to the full term imposed upon him and the term which he will otherwise be required to serve prior to release pursuant to section 258(2) of the Criminal Justice Act 2003?

Mr Nichols has served just over 5 weeks’ imprisonment, which is almost exactly half of the custodial term he will otherwise be required to serve prior to release pursuant to section 258(2) of the Criminal Justice Act 2003 in conditions more onerous than normal. He has, therefore, had at least endured at least some of the punitive effect of the sentence imposed.

(viii) Are there any special factors which impinge upon the exercise of the discretion in one way or the other?

I would give very little weight to the financial effect that Mr Nichols’s imprisonment is having on his family. I do not doubt that the effect is serious for Ms Mileham and Mr Nichols’s children, but that effect is part and parcel of any sentence of imprisonment and was taken into account by Ms Collins-Rice.

The two factors of greatest weight in this application are the fact that Mr Nichols has two health conditions which increase the risk to his health if he were to contract Covid-19 and the MOJ’s announcement in relation to convicted prisoners. Taken together, these factors mean that, given that Mr Nichols has already served 5 weeks’ imprisonment in circumstances more onerous than anticipated, the state’s interest in upholding the rule of law is outweighed by another important interest – that of removing a prisoner at increased risk of suffering serious health complications should he contract Covid-19 from the prison estate. The latter is both a private interest of Mr Nichols’s and also, more significantly for present purposes, a public interest, because it serves to avoid increased strain on the NHS at a time when it is already under great strain. It also serves to lessen pressure on those responsible for running the prisons when they too are under considerable strain caused by manpower shortages connected with Covid-19.

Convicted prisoners who are to be released following the MOJ’s announcement are to be released upon conditions, including electronic tagging. Similar conditions could be imposed on contemnors, by accepting undertakings as conditions of discharge. I do not, however, consider it necessary or appropriate to accept such undertakings in this case for two reasons. First, any such condition would entail supervision by already stretched public authorities. Secondly, such supervision is not required in Mr Nichols’s case, given that his pre-existing health conditions provide a powerful incentive to remain at home until at least the date on which he would otherwise have been released, so as to avoid contracting Covid-19.

Conclusion

For these reasons, I directed earlier today, pursuant to CPR r. 81.31, that Mr Nichols be discharged from his sentence of imprisonment with immediate effect.